COMMISSIONER OF INCOME-TAX, BOMBAY & ANOTHER versus ISHWARLAL BHAGWANDAS AND OTHERS

Citation: [1966] 1 S.C.R. 190 · Decided: 07-05-1965 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Cited by 4 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

190 
COMMISSIONER OF INCOME-TAX, BOMBAY & ANOTIIER 
..l 
v. 
ISIIWARLAL BHAGWANDAS AND omERS 
May 1, 1965 
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c. SHAH. 
J. R. MUDllOLKAR AND S. M. SIKRI, JJ.] 
Constitution of India, 
1950, Art. 
133(1 )(c)-"Civi/ Proceeding", 
Meaning of. 
Income-tax Act (II of 1922), <. 18A(6}, provise>-Scope of. 
The respondents filed under s. 18A(2) of the Income-tax Acl, 1922, 
estimates of their income for the assessment year 
1948, 1948-49 and 
made advance payments of tax. 
On 31st March 1953 the regular as,,.,,._ 
ment was made, but the lncome·tax Officer omitted to charge penal in-
terest as required by s. 18A(6) even though the tax paid was less than 
80% of the tax determined. The error was discovered during audit and 
the Income-tax Officer rectified the error after notice in 1956, under s. 35 
of the Act. 
When the notice demanding interest was issued, the respon· 
dents challenged tho order before the Commissioner on the ground that 
die omission to charge penal interest could not be considered a mistake 
apparent from the record, in view of the proviso to s. 18A(6), which was 
introduced on 24th May 1953 but was made retrospective from 1st April 
1952, giving power to the Income-ta' Officer to reduce or waive the in-
terest payable by the ao;scssee. 
The Commissioner did not accept 
the 
contention. The respondents then moved the High Court under Art. 226 
of the Constitution and the High Court qua.shed the notice of demand. 
In hi.s appeal to this Court, the CommiS>ioner contended that: (i) no 
retrospective operation was effectively given to the proviso. because the 
rules, which alone could render that discretion operative, \Vere framed only 
in December 1953, and (ii) there was nothing to show that the Income-
tax Officer had purported to exercise hi.s discretion when he passed the 
order of assessment but did not impose penal interest under .s. 18A(6). 
The respondent raised a preliminary objeotion that the appeal was incom-
petent because (a) tbe High Court had no power under Art. 133 to certify 
the appeal •• a proceeding under Art. 226 wa• not a civil proceeding 
within the meaning of Art. 133, and (b) even if some proceedings under 
Art. 226 could be treated as civil proceeding, when relief is sought against 
the levy of a tax, the proceeding could not be so treated as it comes under 
"other proceeding" as contrasted with a civil proceeding, referred lo in 
Art. 132(1 ). 
HELD: (i) (by Foll Court) : There is no ground for restricting the 
expression "civil proceeding" only to thooe proceedings which arise out of 
civil suits or p·roceedio~ which are tried as civil suits, nor is there any 
rational basis for excluding from its purview proceedings instituted 
and 
tried in the High Court in exercise of its 
jurisdiction under Art. 226, 
where the aggrieved party seeks relief a~ainst infringement of civil rights 
by authorities purporting to act in exercise of the powers conferred upon 
them by revenue statutes. [200 B-D) 
(Per P. B. Gajendragadkar, 
C. J., K. N. Wanchoo, J. C. Shah and 
S. M. Sikri, JJ) : The expression "civil proceeding" covers all proceedings 
in which a party assert~ the existence of a 
civil right 
conferred 
by 
the civil law or by statute, and claims relief for breach thereof. 
It is one 
in which a person seeks to enforce by appropriJte relief the alleged in-
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C.I.T. V. JSHWARLAL 
191 
fringement of his civil rights against another person or the State and 
which, if the claim is proved, would result in the declaration express 
or implied of the right claimed and relief such as 
payment of debt, 
damages, compensation, delivery of specific property, enforcement of per-
sonal rights, determination of status, etc. By a petition for a writ under 
Art. 226, extraordinary jurisdiction, which is undoubtedly special and 
exclusive of the High Court is invoked. But on that account the nature 
of the proceeding in which it is exercised is not altered. The character 
of a proceeding depends, not upon the nature of the Tribunal which is in-
vested with authority to grant relief but upon the nature of the right 
violated and the appropriate relief which may be claimed. [!96B, G, H; 
197H] 
There is no warrant for the view that from the category of civil pro-
ceedings, it was intended to exclude proceedings relating to or which seek 
relief against enforcement of taxation laws of the State. If a per

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